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Bradley T. Borden

Special Counsel

Brad Borden joined the Firm in 2019 as Special Counsel to the Tax Practice Group, melding the firm’s Pure Play in Real Estate with one of the nation’s foremost experts in Section 1031 and taxation of real estate transactions.

Throughout his distinguished career, Brad has focused on taxation of real estate transactions and passthrough entities, developing a particular expertise of Section 1031 exchanges. In this area, he has unparalleled experience that covers all phases of Section 1031. As a practitioner, Brad represents property owners in all types of Section 1031 exchanges, with a focus on assisting clients with complex transactions such as drop-and-swaps, reverse exchanges, and leasehold improvements exchanges. He has also worked as outside counsel for multiple Section 1031 qualified intermediaries. In that capacity, he has helped qualified intermediaries design business structures, safeguard exchange proceeds, and draft form exchange documents. Brad’s work in these various areas of Section 1031 provides him with 360-degree perspective of the Section 1031 transactions and the unique Section 1031 industry.

Brad’s Section 1031 expertise and facility with complex Section 1031 transactions is enhanced by his in-depth knowledge in other areas of tax, finance, and business law. For example, Brad’s work with passthrough entities, including writing multiple books and numerous articles on the topic, support his expertise in complex Section 1031 exchanges. Books in this area include LLCs and Partnerships: Law, Finance, and Tax Planning, Taxation and Business Planning for LLCs and Partnerships, Limited Liability Entities: A State-by-State Guide to LLCs, LPs and LLPs, and Taxation and Business Planning for Real Estate Transactions.

Brad is a prolific author. He literally wrote the book on Section 1031 (actually 3 of them). His treatise entitled Tax-Free Like-Kind Exchanges is considered the most comprehensive work on Section 1031 exchanges. Brad has written dozens of articles on all aspects of Section 1031, with articles published in the nation’s leading professional tax journals. He has written seminal articles on numerous areas of Section 1031, including exchanges of partial real estate interests, related-party exchanges, exchanges and proximate business transactions (often referred to as drop-and-swaps), reverse exchanges, related-party exchanges, leasehold improvements exchanges, and Section 1031 and opportunity funds. In fact, he introduced the concept of leasehold improvement exchanges, was instrumental in obtaining the first private letter ruling sanctioning leasehold improvement exchanges, and subsequently helped refine this complex exchange structure. Thus, he invented one of the most important exchange structures. Brad also serves a columnist for the Like-Kind Exchange Corner of the Journal of Passthrough Entities, where his columns appear three times a year.

Brad is an unquestioned thought leader in in taxation of real estate transactions and passthrough entities. His work has been cited in several published judicial decisions, including those by the Ninth Circuit and Fifth Circuit of the United States Court of Appeals, and in leading scholarly and professional journals, casebooks, and treatises. He is one of the top downloaded tax authors on Social Science Research Network (SSRN), and his articles are often in the top download lists on that site. He is also frequently interviewed and referenced in major media outlets, including Bloomberg, The New York Times, and Tax Analysts Tax Notes, and he is a consultant to The New York Times.

Brad has also served as expert witness in several cases that raised issues related to Section 1031 and other complex areas related to the taxation of real estate transactions and passthrough entities. In that capacity, Brad has worked on cases involving Section 1031 qualified intermediary collapses, legal malpractice, REMIC failure, classification of passthrough entities, and claims of fraud. He also worked as a consultant for the United States Joint Committee on Taxation.

As a tenured law professor at Brooklyn Law School, Brad teaches multiple advanced tax law courses, including Federal Income Taxation, which covers basic concepts that are fundamental to Section 1031 and the basics of Section 1031, Taxation of Real Estate Transactions, which covers various aspects of tax planning for real estate transactions and Section 1031 in detail, Partnership Taxation, which covers topics that are critical to complex Section 1031 exchanges that occur in proximity to business transactions, LLCs and Partnerships, which covers the state law and financial aspects of passthrough entities.

Brad is a frequent speaker at professional and other conferences on Section 1031 and related topics. He has spoken at the nation’s most elite tax conferences, including the The American Bar Association Section of Taxation, Jeremiah Long Memorial National Conference on Like-Kind Exchanges Under Section 1031 I.R.C., the New York University Institute on Federal Taxation, the Southern Federal Tax Institute, and the Texas Federal Tax Institute.

Brad is also active in professional organizations. He is a past chair of the Sales, Exchanges & Basis Committee of the American Bar Association Section of Taxation, the committee with jurisdiction over Section 1031, and remains active in the Section. He is also an active member of the New York Bar Association Section of Taxation and other sections. Through his participation in these professional organizations, he has led the preparation of comments to government entities regarding various aspects of Section 1031, and he has planned numerous professional conferences covering Section 1031.

Associations:

Sales, Exchanges & Basis Committee of the American Bar Association Section of Taxation, past chair and current member

S-Corp and Partnership Taxation, and Potential Implications of the New Tax Code, New York State Bar Association, Business Law Section Spring Meeting, Business Organizations Law Committee, New York, New York, May 2018 (with Russell Kranzler and Matthew Moisan)

The State of Section 1031 Drop-and-Swaps Thirty Years After Bolker and Magneson, The University of Texas School of Law 63rd Annual Taxation Conference, Austin, Texas, December 2015

Maximizing Capital Gains in Real Estate Transactions, New York University 74th Annual Institute on Federal Taxation, San Francisco, California, November 2015 (with James M. Lowy)

Did You Really Mean What You Wrote in that IRR Distribution Waterfall? American Bar Association, Business Law Section, LLC Institute, Alexandria, Virginia, November 2015 (with John Grumbacher, Thomas Kaufman & Steven Schneider)

Maximizing Capital Gains in Real Estate Taxation, New York University 74th Annual Institute on Federal Taxation, New York, New York, October 2015 (with James M. Lowy)

The Long and the Short of the Effects of Long on Long Term Capital Gains, American Bar Association, Section of Taxation, Sales, Exchanges & Basis Committee Meeting, Washington, D.C., May 2015 (with Danshera Cords, Sandy Irving, Calvin H. Johnson & Charles H. Kim)

Open Issues in Deferred Exchanges 15 Years Later (including newly issued regulations under §468B), Jeremiah Long Memorial National Conference on Like-Kind Exchanges Under Section 1031 IRC, Scottsdale, Arizona – October 2008

Sales and Exchanges: Current Developments, American Bar Association Section of Taxation and Section of Real Property, Probate and Trust Law Joint Meeting, Sales, Exchanges & Basis Committee Meeting, Vancouver, British Columbia, September 2007

Tax Consequences of Foreclosures and Distressed Property Transfers: From the Subprime to the Ridiculous, American Bar Association Section of Taxation and Section of Real Property, Probate and Trust Law Joint Meeting, Sales, Exchanges & Basis Committee Meeting, Vancouver, British Columbia, September 2007

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